United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
plaintiff Juan Nieto, a prisoner in the custody of the
Wisconsin Department of Corrections, is proceeding against
defendant prison officials on deliberate indifference and
medical malpractice claims. Nieto contends that defendants
delayed diagnosing and treating his broken toe and bone spurs
for almost two years, despite knowing that he was in great
pain. Defendants have moved for summary judgment on all
claims. Dkt. 43. Disputed issues of material fact preclude
resolution of several claims, so I will deny defendants'
motion in part and recruit counsel to assist Nieto at trial.
following facts, except where noted, are undisputed.
is currently incarcerated at the Stanley Correctional
Institution (SCI). He was incarcerated at the Columbia
Correctional Institution (CCI) from June 27, 2006, to July
November 11, 2013, Nieto submitted a health services request
(HSR) about “problems” with his feet and wrist.
Dkt. 46-1, at 72. The next day, Nieto met with defendant Kim
Campbell, a nurse. He explained that his right wrist and both
of his big toes hurt ever since he slipped and fell into the
wall during recreation two weeks prior. Campbell noted that
Nieto's left big toenail appeared “yellow”
and “brittle, ” but otherwise showed no bruising
or swelling. Id. at 118. (Nieto now says that in
fact his left toe was bruised and swollen. Dkt. 42, at
45:22-46:5.) Campbell noted that Nieto expressed
“slight discomfort” to palpation of the left toe.
Dkt. 46-1, at 118. She instructed Nieto to rest and use
acetaminophen to control the pain. She indicated that she
scheduled a follow-up appointment in two weeks.
days later, Nieto submitted another HSR explaining that the
medication he received did not adequately control the pain in
his feet and wrist. See Id. at 73-74. He requested
another appointment and was told that one was scheduled.
attended a follow-up appointment with defendant Denise
Valerius, another nurse, on November 25. Id. at 25.
Valerius noted that Nieto rated the pain in his toes as a
seven out of ten, with the right toe more painful than the
left. She noted a decreased range of movement in the right
toe due to the pain. She gave Nieto ibuprofen to control the
pain and instructed him to submit another HSR for a follow-up
appointment with a doctor if he found no relief after two
weeks. Nieto says he submitted another HSR on December 10,
about two weeks later, “requesting help in pain,
” but the evidence that he points to in support of this
proposed fact-“exhibit 6”-has not been filed with
the court. Dkt. 57, ¶ 30; see also Dkt. 24
(informing Nieto that “exhibit 6” was not
included with the exhibits he submitted). Medical records do
indicate, however, that Nieto was prescribed ibuprofen on
December 26. See Dkt. 46-1, at 35.
January 21, 2014, Nieto submitted another HSR complaining
that he still hadn't been seen by a doctor about
“the problem” with his “feet.” Dkt.
46-1, at 71. A response dated January 22 indicated that Nieto
was scheduled to see a doctor. There's no record of a
visit with a doctor, but on January 24, Nieto was prescribed
ibuprofen, among other drugs. See Id. at 34.
waiting several months, Nieto submitted another HSR on March
31, complaining that it “had been 5 months since”
he had been seen “about the problems with [his] feet,
” despite his being told that a doctor would see him.
Id. at 70. He explained that “the problem
[was] still hurting [his] feet.” Id. A
response dated April 2 indicated that Nieto would be seen by
a doctor “in approximately a month.” Id.
But that appointment never materialized.
submitted another HSR on July 14, complaining that he had
“been waiting to see the doctor for more than six
months about the problem with [his] foot.” Id.
at 67. Valerius responded the next day indicating that he was
scheduled to be seen by a nurse in “mid-August.”
Id. On August 10, Nieto submitted another HSR.
See Id. at 64. The first page of the request
concerns an unrelated problem with Nieto's eye. A second
page is missing. Defendant Meredith Mashak, a health services
manager, responded to the request the next day: “Opto
apt this week. Sick call for eye & toenails.”
September 8, Nieto submitted another HSR explaining that he
was supposed “to see the doctor in the middle of last
month for the problem with [his] toes” but was never
called for an appointment. Id. at 65. He asked for
an appointment “sometime in this week.”
Id. The next day, he received a response that he was
scheduled for a follow-up appointment with a doctor.
Id. But once again, that appointment never
November 14, Nieto was seen by defendant Kathleen Whalen, a
nurse clinician. (The records for that appointment indicate
that it was “initiated by” an HSR dated November
13, id. at 23, but neither party has submitted a
November 13 request.) Whalen noted that Nieto reported that
the pain in both of his big toes had lasted for more than a
year, he saw a nurse “last year” about this pain
and was supposed to see a doctor about it but never did, and
that after running for about 10 minutes, the pain escalated
to the point that he couldn't walk. Id. Nieto
rated the pain as a 4 or 5 out of 10. He explained that he
thought x-rays would be appropriate to diagnose the problem.
Whalen examined Nieto's toes and noted that circulation,
motion, and sensation were “good” and that there
were no visual deformities other than fungus under the right
toenail. Id. Whalen instructed Nieto to continue
exercising “as able, ” use over-the-counter
medication to control the pain, and notify the Health
Services Unit if his symptoms worsened. Id. at 24.
At Nieto's request, she scheduled a follow-up appointment
with a doctor. A week later, Nieto submitted an HSR
complaining that he was charged two copayments “to be
seen for the same problem.” Id. at 60. Mashak
responded that a second copayment was due because he
“had not been seen in over 60 days.” Id.
January 14, 2015, Nieto was first seen by a doctor, defendant
Karl Hoffman. According to Hoffman's notes, Nieto
complained of pain in his right big toe that began
“approximately 10 months ago” when he slipped and
“kicked the wall” while playing basketball; the
pain had “gradually improved” since then but not
disappeared. Id. at 21. Hoffman examined Nieto and
noted that “[t]e right toenail is thickened and yellow
[and t]he right great toe is tender.” Id. He
also noted “[d]iscomfort with passive motion of both
the MTP and PIP joints [and a] thickening of the distal right
first metatarsal suggestive of a bone spur.”
Id. He prescribed Nieto medication to treat the
apparent fungal infection and ordered x-rays of the right big
toe. Hoffman did not mention Nieto's left toe, but Nieto
argues that he complained of pain in his left toe during the
January 14 encounter-he points to a nurse's report
written later that year, which records Nieto's complaint
that “back in January, [he] told Dr. Hoffman both [his]
feet were hurting, ” but Hoffman only ordered x-rays of
his right foot. Id. at 19. Hoffman states in a
declaration that Nieto never complained about his left toe at
the January 14 encounter. See Dkt. 50, ¶ 11.
January 20, x-rays were taken of Nieto's right foot. A
radiologist found “a small avulsion fracture [at the]
base of [the] first proximal phalanx.” Dkt. 46-1, at
39. Hoffman reviewed the radiologist's report on January
23. It appears that he did nothing in response. He now states
in his declaration that the “standard protocol”
for treating such a fracture “would be rest and
over-the-counter pain medication, which Nieto had available
to him.” Dkt. 50, ¶ 12.
3, Nieto submitted an HSR that read, “A couple months
ago you took an x-ray on my foot, but you never told me if I
have a fracture or not because I'm still feeling the pain
every time I jump or kick something by accident.” Dkt.
46-1, at 50. He was told to “send disbursement form for
copy.” Id. On June 15, Nieto submitted another
HSR that read, “Like a week ago I wrote to you asking
about the x-ray that you took of my foot. What I want to know
is what are the results of the x-ray. Please could you let me
know because I'm still feeling pain. Thank you.”
Id. at 49. He was against directed to submit a
disbursement form. He submitted the required form on June 18
and received a response the following day with a one-page
enclosure-presumably a copy of the radiologist's report.
See Id. at 48.
8, Nieto filed a grievance about “the lack of proper
treatment” for his “broken bone.” Dkt.
19-2, at 11. He attached some medical records and a timeline
of his HSRs and medical appointments. He asked that he be
scheduled to see a doctor “to get effective management